CONTENTIEUX ELECTORAL

Jurisdiction of the Council on electoral disputes

The constitutional council has the jurisdiction to control the constitutionality of laws and to rule on electoral disputes (According to Article 19 of the Constitution, Article 1 of the law establishing of the Constitutional Council, and Article 1 of the internal statutes of the Council).

Disputes related to presidential elections

According to Articles 19 of the Constitution and Article 23 of the law establishing the Constitutional Council, the council has the authority to rule on disputes related to the election of the President of the Republic and the election of the Chief of Parliament.

Challenges to the presidential elections must be submitted by one-third of the deputies. The challenge should be presented to the presidency of the council within 24 hours following the proclamation of the results. The decision is issued within 3 days, following concise procedures which allow the constitutional council to reach a decision before the President or the Chief of Parliament begin their duties. The decision is taken by a majority of 7 members in the first round; otherwise the absolute majority of the members is required. The parliament remains convened as an electoral college until the council issues a decision of validation or invalidation.

To this day, the Constitutional Council has not received any challenge to the presidential elections. The council can be presented with two questions in this field: the question relating to the necessary conditions for the election of the president according to Article 49 of the Constitution and the question relating the regularity of the electoral process (date of elections, call for elections, vote counting, integrity of elections, quorum and majority).

Disputes related to parliamentary elections

The law establishing the council and the council’s internal statutes have established norms and procedures related to challenges against the results of parliamentary elections.

According to Article 24 of the law establishing the constitutional council and Article 46 of its internal statutes, the challenge to a deputy’s election is presented to the presidency of the Council in the form of a claim submitted to the registry of the Council in accordance with Article 25 of the law establishing the council. The legislator has limited the right to challenge the results to the losing candidate, provided he/she is candidate to the same seat in the same electoral district (i.e. to the seat of the same confession, in case there is more than one seat for the same confession in the same district). The losing candidate must present the claim to the presidency of the council within 30 days following the official announcement of the results in his/her district; otherwise the claim is rejected for procedural defect.

Unlike the courts, the Constitutional Council does not accept any explanatory notes or exchange of memorandums. The Council shall notify the defendant of the challenge and the latter has 15 days to respond to the presented allegations before the rapporteur conducts the investigations required for the preparation of his report to the president of the council.

The Constitutional Council has a constant case law delimiting his jurisdiction on electoral challenges. The council has limited its jurisdiction to the control of the validity and credibility of elections, and the control of the conditions of eligibility of the candidates. It has also limited its jurisdiction to the dispute between the losing candidate and the elected one. The council has confirmed the special nature of the challenge, the scope of which is limited to the claimant and the defendant whose election is in question, without affecting the validity of the whole electoral process. The invalidation of a deputy’s election following a challenge presented by the opposing candidate does not affect the election of another deputy, even if the election of the latter is marred by the same defects.

The council focuses on the specific nature and circumstances of each challenge, and not on the validity of the entire electoral process. The electoral dispute does not aim to scrutinize the defects marring the electoral process itself but to examine the validity and credibility of the election in question.

The Constitutional Council also considers it has no jurisdiction to review preparatory acts, unless the violations presented in the claim were intentionally committed with the purpose of fraud or falsification and marred the integrity of the elections. The council has also limited its jurisdiction to examining the legal grounds presented in the claim or related to public order; it considers it has no jurisdiction as an electoral judge to review the constitutionality of the electoral law while ruling on a challenge to electoral results.